Lobbying firm and railroad may be liable as ‘single employer’ for lobbyist’s harassment of purportedly shared subordinate
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Friday, June 12, 2020

Lobbying firm and railroad may be liable as ‘single employer’ for lobbyist’s harassment of purportedly shared subordinate

By Marjorie Johnson, J.D.

The railroad’s director of public affairs shared office space with the harasser and was the chairman of the lobbying firm’s executive committee, and there was evidence that he played a role in firing the subordinate after she complained about her supervisor’s sexual harassment.

An administrative assistant for a railroad lobbying firm, who claimed she was terminated after complaining about her supervisor’s sexual harassment to both her supervisor and a director for a railroad client with whom she and her supervisor shared office space, could pursue her Title VII lawsuit against both the lobbying firm and the railroad. Triable issues existed as to whether they operated as a "single employer" since she presented sufficient evidence that the entities had a centralized control of labor relations and functionally integrated operations, as well as whether a tangible employment action was taken against her which would result in strict liability, a federal district court in Louisiana ruled in denying the railroad’s motion for summary judgment (Hooge v. Union Pacific Railroad Company, June 9, 2020, Dick, S.).

Shared office space. The employee worked in an administrative role for the Louisiana Railroad Association (LRA), a railroad lobbying firm that was governed by an executive committee consisting of representatives from its railroad clients. She worked with her male supervisor, a lobbyist and attorney who was LRA’s founder, in an office that the LRA leased and shared with Union Pacific Railroad’s (UP’s) director of public affairs. The employee claimed that she also performed administrative tasks for the director, who also served as chairman of LRA’s executive committee, but this was disputed.

Sexual harassment complaint. In 2015, the employee’s supervisor allegedly began sexually harassing her at the office by, among other things, pulling her into his lap, grabbing her breast, kissing her neck, patting her rear, and giving her ‘lingering’ hugs. On May 30, 2017, she complained in a letter addressed to both her supervisor and the UP director. Her supervisor stopped the inappropriate touching, but started treating her aggressively and disrespectfully.

Terminated. She submitted a letter of resignation on July 10, but two days later told her supervisor that it had been merely a draft intended to voice her concerns. After she withdrew the letter, her supervisor and the UP director purportedly discussed her discharge later and ultimately terminated her. She subsequently brought the instant action asserting a claim of Title VII sexual harassment against her supervisor, the LRA, and UP.

"Single employer" status. UP moved for summary judgment, arguing that it was not her employer under Title VII. In response, the employ argued that the railroad and the LRA operated as a single business enterprise; or alternatively, that they were joint employers. Because the court found that triable issues existed as to whether the entities operated as a single business under the applicable four-factor analysis, it did not address her joint employer argument.

Functionally integrated. First, rejecting the railroad’s assertion that there were no interrelation of operations and that it was only one of the lobbying firm’s clients, the court found sufficient evidence suggesting the two entities were "functionally integrated." In particular, the employee claimed that she performed work for both entities "on a daily basis throughout the entirety of her employment," including compiling briefing books, taking phone messages, setting up voicemail, preparing expense reports, printing and filing, arranging meetings, sending packages, drafting letters, and various other administrative tasks.

Centralized control of labor relations. Noting that the "centralized control of labor relations" factor was the most important factor, the court found that a triable issue also existed as to whether the railroad lacked control over the decisions as to the employee. She argued that the railroad, through its director, had the authority to terminate her. Specifically, she claimed that he played a role in firing her by calling a meeting of the executive committee and hiring an attorney to evaluate whether the LRA had a duty to investigate her May 30 letter. She also maintained that he played a role in hiring her and was the primary decisionmaker of her salary.

These facts supported a finding that the director—and therefore UP—were involved in the "underlying decision-making process that resulted in the alleged unfair labor practices," which was "probative of centralized control of labor relations and single-employer status." Because her supervisor and the director both testified that only the supervisor had the authority to fire her, a triable issue existed as to the nature and extent of control.

Common management. However, there was no dispute as to the common management factor, nor did she present evidence of a common ownership or financial control. But because the centralized control of labor relations factor was of primary importance, and another factor weighed in favor of single employer status, a jury would decide this issue.

Railroad’s liability. UP also argued that it could not be liable since it did know about the alleged harassment until her May 30 letter, and that once it became aware it took appropriate action. However, the employee presented evidence suggesting that its director was also involved in her termination. Thus, a triable issue existed as to whether a tangible employment action was taken against her for which the railroad could be strictly liable under the single entity analysis.

Lobbying firm’s arguments rejected. The LRA also attempted to also escape liability by arguing that it was a sole proprietorship which, in Louisiana, lacked the capacity to sue and be sued. However, denying summary judgment, the court found that under applicable precedent, the lobbying firm was an unincorporated trade association that possessed representational standing, and therefore had capacity to sue and be sued. The court also rejected the LRA’s contention that the numerosity test was not met since it employed less than 15 employees. If a jury determined that the firm and UP were a single employer, the numbers of employees for both entities could be aggregated to meet Title VII’s numerosity requirement.

The case is No. 3:18-cv-01112-SDD-RLB.

Attorneys: J. Arthur Smith, III (Smith Law Firm) for Monica McDonald Hooge. David Andrew Fraser (Fraser, Wheeler, Bergstedt & Courtney) for Union Pacific Railroad Co. Leo Charles Hamilton (Breazeale Sachse & Wilson) for Louisiana Railroad Association and Carmack Blackmon.

Companies: Union Pacific Railroad Company; Louisiana Railroad Association

Cases: CoverageLiability Discrimination SexualHarassment SexDiscrimination Procedure GCNNews

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